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Another "Jewess with attitude" on the Supreme Court?

Mere minutes after news of Justice John Paul Stevens’ retirement went public two weeks ago, speculation about his replacement began. As Republican lawmakers declared their opposition to all and any hypothetical candidates and the Obama administration played coy while strategically leaking information to the media, political junkies began to analyze the President’s “shortlist”: those few candidates strongly rumored to be up for the job. The initial conventional wisdom pointed to three contenders: Appeals Court judges Diane P. Wood and Merrick B. Garland, and Solicitor General Elena Kagan.

Kagan, the first female Solicitor General, would join Ruth Bader Ginsburg as the second Jewish woman on the nation’s highest court. Kagan has an impressive resume. Prior to becoming Solicitor General last year, she served as the Dean of Harvard Law School for six years and in the 1990s shaped domestic policy as a key member of President Clinton’s administration.

The Solicitor General has been nicknamed the “tenth justice,” a reference to the respect earned by Solicitor General as the person most often arguing cases before the Supreme Court and the role the Solicitor General plays in molding the Court’s docket by supporting particular cert petitions. If placed on the Court, Kagan would be the only member to have never been an appellate court judge (the current makeup of the Court is a historic anomaly—traditionally, justices were prominent lawyers, aging politicians, and distinguished judges. It is only recently that the Appeals circuit became the only pipeline to the Supreme Court).

Because Kagan has never been a federal judge, it is more difficult to pinpoint her judicial philosophy, much to the chagrin of armchair quarterbacks throughout the internet. Kagan has both fierce advocates and critics. Glenn Greenwald at Slate offers a substantial argument against Kagan’s nomination, writing that her ascendancy to the Court could risk “moving the Court to the Right, perhaps substantially to the Right.” He also argues that she is less qualified than other candidates, notably Diane Wood, and that she has been relatively silent on the constitutional questions facing this nation over the past ten years, specifically on issues of executive power and the abuse of that power. In a response on Huffington Post, constitutional scholar Linda Monk argued that rather than making the Court more conservative, Kagan could be the next Earl Warren, a bridge builder who might bring the two factions of the Court together. And Monk correctly observes that “the truth is, we don't know what any justice will become once she joins the Court.”

Kagan is the only Jewish woman on the shortlist--Garland is a Jewish man, and Wood is Protestant (however, it is interesting to note that one of the Appeals Court cases in which Wood most demonstrated her judicial skill is Bloch v. Frischoltz. In that case, the Jewish Bloch family sued their condo board after it forbid them to put a mezuzah on their doorframe. The Court initially ruled against the Blochs, but Wood’s dissent was so compelling that the Court went back to the case a year later and reversed its decision. But I digress). The New York Timesreports that the list has been extended to ten names, including Martha Minnow, another Jewish woman and Kagan’s successor as Harvard Law School Dean.

Word is that we will know who the nominee will be within two weeks. Only time will tell if we will see another "Jewess with attitude" on the nation’s highest bench.